So Theresa May arrives at Bregançon today. Her mission is simple. To persuade President Macron to insist on greater flexibility in the EU’s negotiating mandate, allowing for the kind of compromise deal that Michel Barnier has repeatedly ruled out.
Whether she will succeed or not no one can yet say with any certainty. But there is a strong political case for politicians in the member states taking very seriously the case for greater flexibility on the EU side as the Brexit talks approach their endgame.
As those talks rumble on, the negotiations have become a clash of cultures. Mrs May talks of the need to strike a ‘creative’ deal that allows cooperation to continue as before while respecting her various red lines. The EU emphasizes process and precedent and has provided the UK with a choice between existing models of relationship rather than considering a bespoke and original one.
Ultimately, this all boils down to the issue of ‘cherry picking’. Simply put, can the UK enjoy the fruits of cooperation while avoiding some of the perceived costs? The answer from the EU side has been an unequivocal ‘non’. The UK must play by the rules – all of them – or pay a price. It must be in the single market or out of it. Under the authority of the EU’s Court or lose access to data.
The problem with this is that Mrs May is quite possibly unable to make the offers on the table fly at home. The Irish backstop means a minimal deal along Canadian lines would be politically unacceptable to a majority of the House of Commons as well as to Unionists in the North.
Moreover all forecasts suggests it would be enormously damaging economically, even if a way could be found round the Irish conundrum.
Equally, it is hard to see how the Prime Minister could sell the kind of Norway plus option that might obviate the need for an intra-Irish border. Relying on Labour MPs who favour a soft Brexit would be dangerous strategy.
So, something will have to give. The British white paper, while far from perfect, represented a significant shift by the British government towards the pinking of its red lines.
As for the EU, it’s worth considering what the constraints on the Brussels side are. The ‘integrity’ of the single market -so often cited as the reason to forbid ‘cherry picking’ – is a political, not legal, concept.
In what I regard as the best discussion of this issue, Stephen Weatherill underlines that the four freedoms are not merely divisible, but divided. And there “is in law no obstacle to dividing the freedoms in the way that some in the UK would wish, most obviously by privileging the free movement of goods and services over that of people.
The indivisibility of the freedoms is a political construct: the legal reality is already more messy and more heterogeneous. But the political commitment to the indivisibility of the freedoms within the internal market is profound, and it is existential”.
So it’s the politics, stupid. Yet even here, there are no hard and fast principles at play. For Switzerland and Ukraine, Brussels was happy to allow cherry picking. Both countries apply EU rules in some sectors only.
EU officials generally retort that this is because of a unique political context. Both countries were seen, at the time the agreements were signed, as being embarked on a trajectory towards membership.
But all political contexts are unique. And Brexit is no different. As Henry Newman has argued, the potential gains from cooperation are themselves significant and should give pause to those who put supposed principle above practical outcomes. A Canada style deal means a significant hit to security cooperation, inter alia, which will affect all European states.
Moreover, a deal with damaging economic (Canada) or political (Norway) effects will have important implications for the future. When Jeremy Hunt recently stated that British attitudes towards the EU would be soured ‘for a generation’ in the event of no deal, this was no threat, but, worse, and admission. An admission that our politics are out of control.
The chances of an upsurge in anti-European populism in the event of not only a no deal but an economically damaging deal should not be discounted. Polling reveals that over 50% of British people think the EU is handling negotiations badly, and so might easily be tempted to blame Europeans for any ill effects of Brexit.
And whilst this is of course primarily a British problem, it has repercussions beyond our shores. Take one example. Britain was the only country in which support for the defending a NATO ally attacked by Russia fell between spring 2015 and spring 2017. It is hard to believe that the Brexit atmosphere contributed to this outcome.
The problem is that the EU is, by design, prone to downplaying issues of politics and geopolitics. It was designed as a technocratic solution to the problems of power politics. For years, supporters of European integration have underlined the way in which the problems of politics, and the sub-optimal outcomes it generates, can be mitigated by clever institutional design in Brussels.
Yet recent years have made clear the shortcomings of this approach. The euro was designed to be governed by metrics, without any real sensitivity to its profound distributive – hence political – implications. Equally, geopolitical naivety led the EU to ignore clear warning signs that its approach to Ukraine risked aggravating Russia.
Nowhere is this focus on the technical clearer than in the European Commission’s recent communication on preparing for Brexit. In the event of no deal, the Commission states that main consequences will be around citizens’ rights, trade and borders, regulation and UK ineligibility for EU funding. The politics, and geopolitics, are absent.
Hence the importance of shifting the debate from the European Commission to the member states. The European Commission has an interest in enforcing the EU’s belief system framed around the indivisibility of the four freedoms.
After all, the greater the desire for purity, the greater the power of those who enforce it. And the member states, as of yet, have little to complain about: purity has, to date, delivered 40 billion euros and citizens’ rights.
The key will be the future and the trade-offs implied for the future relationship. Hence the diplomatic initiative by London, and the importance of the Salzburg summit, where both Brexit and security will be discussed.
‘Brexit means Brexit’ has been a constant refrain of the British Prime Minister. But she is wrong. Brexit, in fact, means much more than merely Brexit. At stake in the negotiations is not just the relationship of the UK with the EU, but a complex web of political ties whose importance extend far beyond considerations of the costs and benefits of economic integration.
A number of high profile academics and politicians recently made the case for a way forward that will require some flexibility from both sides. We wait to see, if the member states will think it worth providing some.
By Professor Anand Menon, Director of The UK in a Changing Europe. This piece originally featured in Le Monde.